International Environmental Law Part 10 doc

Nauru claimed that Australia was responsible for breaching its international obligations, which included: • obligations emanating from its role as the administrator of the trusteeship me

spe-The Government of the United States accepts the responsibility for compensationowing to citizens of the Marshall Islands or the Federated States of Micronesia forloss or damage to property and person of the citizens [of the Marshall Islands andFederated States of Micronesia] resulting from the nuclear testing program which theGovernment of the United States conducted in the Northern Marshall Islands betweenJune 30, 1946, and August 18, 1958.167

In 1944, during World War II, the United States captured the Enewetak Atoll and the Bikini Atoll from the Japanese In 1947, both the Enewetak people and the Biniki people were removed from their territory for the purposes of conducting nuclear testing by the United States The relocation was to be temporary – not to exceed a period of three to five years.

During the period between June 1946 and August 1958, the United States ducted sixty-seven nuclear atmospheric tests in the Marshall Islands – of which forty-three were conducted at Enewetak Atoll and twenty-three at the Bikini Atoll The most potent of those tests was the so-called Bravo test, a fifteen-megaton device detonated on March 1954 at the Bikini atoll The test by itself was equivalent to one thousand Hiroshima bombs.

con-In the early 1970s, following a limited cleanup of the Bikini Atoll, some of the Bikini community returned to the atoll to live there.168 But in 1978, following a medical examination of Bikinians, it was concluded that people living there had ingested high amounts of radioactive cesium-137 and needed to be removed again immediately.169

The United States and the Marshall Islands entered into an agreement to ment Section 177 of the 1983 compact.170 In that agreement, the United States recognized the contributions and sacrifices made by the people of Marshall Islands

imple-167Section 177(a), Compact of Free Association of the United States of America, and the Governments

of the Marshall Islands and the Federated States of Micronesia, signed by the United States and by theFederated States of Micronesia and the Republic of the Marshall Islands on October 1, 1982 and June

25, 1983, respectively See also Compact of Free Association Act of 1985 [P.L 99–239], Jan 14, 1986[hereinafter Compact of Free Association]

168 Before the Nuclear Claims Tribunal of Republic of the Marshall Islands, Memorandum of Decision andOrder, In the Matter of the People of Enewetak, et al., Claimants for Compensation, NCT No 23–0902,

April 13, 2000, available online at http://www.nuclearclaimstribunal.com [hereinafter Enewetak case].

169 Before the Nuclear Claims Tribunal of Republic of the Marshall Islands, Memorandum of Decision andOrder, In the Matter of the People of Bikini, et al., Claimants for Compensation, NTC No 23–04134,

March 5, 2001, available online at http://www.nuclearclaimstribunal.com [hereinafter Bikini case].

170 Agreement between the Government of the United States and the Government of Marshall Islandsfor the implementation of Section 177 of the Compact of Free Association, June 25, 1983 [hereinafterSection 177 Agreement]

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with regard to the nuclear testing program.171The implementing agreement sets out the details of compensation Under the agreement, the United States provided the Marshall Islands with the sum of US$150 million as a financial settlement of damages for the purpose of creating a fund.172The fund is to be invested with a performance goal of achieving at least $18 million per year in distributions.173 The fund must

be able to generate about US$270 million for distribution over a period of fifteen years.174 The agreement also calls for the establishment of a claims tribunal, which would have jurisdiction to render judgments on all claims past, present, and future

of the citizens and nationals of the Marshall Islands.

The tribunal was established, recognized claims, and awarded damages for:

• loss of use of property (e.g., the fact that people have been denied the use of their property for years);

• future denied use;

• restoration of land based on the IAEA principle that policies for radiation tection of populations outside national borders from releases of radioactive sub- stances should at least be as stringent as those for the population within the country of release, which meant the application of the more stringent United States standards; and

pro-• hardship, which encompasses the uprooting of people from their homes, changes

in their ways of life, loss of control over their lives, and the undermining of traditional authority.

As a matter of procedure, with regard to the award of damages, it is interesting to note that the tribunal established thirty-six medical conditions that were irrefutably presumed to be the result of the nuclear testing program.175The suffering that was caused because of the involuntary relocations has been described in the proceedings

of the tribunal.176The tribunal awarded the people of Bikini a total amount of US$563,315,500.177The total amount the tribunal awarded in the case of Enewetak was US$341,049,311.178

Issues of state responsibility also are implicated in the Nauru case The

exploita-tion of Nauru started in 1908, when the Germans were in control of the Nauru

171

Preamble, id.

172 Art I, Section I, id.

173 Art I, Section 2(a), id.

174 Art II, id.

175 Diseases, for which compensation was provided, are available online at http://www.nuclearclaimstribunal.com

176 In the Enewetak case, it is mentioned that the “once self-sufficient people [of Enewetak] has been

transformed into dependent wards of the United States.” With the relocation “the structure of men’slives had been radically altered, and the time previously spent on canoes was replaced with boredom and

meaningless activity.” See Enewetak case, supra note 168.

177 This includes $278,000,000 for past and future loss of use of the Bikini Atoll; $251,500,000 to restoreBikini to a safe and productive state; and $33,815,500 for suffering by the people of Bikini as a result oftheir relocation

178 This includes $199,154,811 for the past and future loss of the use of Enewetak Atoll; $107,810,000 torestore the atoll to safe and productive use; and $34,084,500 for the hardships suffered by people as aresult of their relocation to Ujelang

by Australia, New Zealand, and the United Kingdom After World War II, Australia became the principal administrator of the island under a United Nations trusteeship agreement The independence of the island was eventually granted in 1968 Nauru has large quantities of phosphate, the majority of which it exports to Australia as fertilizer for its poor agricultural soils Because of the extensive mining of the island,

80 percent of the island is now barren.

The dependence on phosphate exports has affected the lifestyle of people Because most of the land has been used for mining, Nauruans import most of their food Since independence in 1968, the Nauru government has earned AU$100–AU$120 million per year from phosphate exports.

Nauru filed a claim before the ICJ against Australia in 1989 The goal of Nauru was to obtain compensation from Australia for phosphate mining that took place before its independence Nauru claimed that Australia was responsible for breaching its international obligations, which included:

• obligations emanating from its role as the administrator of the trusteeship ment;

agree-• the basic responsibility of an administrator of a territory not to bring changes in the condition of that territory that cause irreparable damage to or substantially prejudice the existing or contingent legal interest of another state with respect

to that territory; and

• compliance with the principle of self-determination and the sovereignty of states over their natural resources.179

Australia disputed the jurisdiction of the ICJ, claiming that the Nauru ment had mismanaged the phosphate export funds Australia also claimed that the agreements it signed with Nauru at the time of independence nullified future claims The ICJ:

govern-• was not receptive of the argument that the issue of phosphate exploitation had been settled by the very fact of the termination of the trusteeship agreement because Nauru and Australia had not entered into proceedings relating to the rehabilitation of the phosphate lands;

• concluded that the local authorities of Nauru had not waived in any way their claim relating to the rehabilitation of the phosphate lands;

• did not accept the Australian argument that the General Assembly resolution that terminated the trusteeship agreement terminated also the rights of the Nauru people with regard to the rehabilitation of their land; and

• concluded that the claim of Nauru was admissible because it was submitted within a reasonable time.180

179 Paras 1–6, Case Concerning Certain Phosphate Lands in Nauru, (Nauru v Australia), (PreliminaryObjections), June 26, 1992, (1992) ICJ Reports 240

180 Paras 8–38, id.

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Australia and Nauru eventually reached a settlement agreement in 1993 ing to the agreement, Australia was to award Nauru AU$107 million in compensation for environmental damage Nauru waived any further claims regarding the phosphate mining or the administration of the island during the trusteeship era.181

Accord-Despite the settlement, the future of the islanders does not seem very hopeful.

A possible scenario would involve the rehabilitation of land after the cessation of mining and the development of infrastructure – namely, a hospital, schools, and government buildings The cost of rebuilding the ecosystem of the island in terms

of importing topsoil, nutrients, and engaging in other rehabilitative measures could cost about AU$200 million and could take up to thirty years Another scenario involves the evacuation of the Naurans from the island.182

A further rehabilitation and development agreement was signed between Nauru and Australia in 1994.183 The agreement identifies possible sectors and activities that should be assigned priority in the rehabilitation of Nauru, such as forestry, education, industrial development, and public administration Assistance provided for in the agreement includes the provision of materials, goods, and equipment for the purposes of development; the granting of scholarships to Nauru nationals; and the assignment of Australian experts and advisers to the island.184 The agreement

is to remain in force for twenty years but must be reviewed frequently within that period of time.185

The Rainbow Warrior Affair has elucidated further issues of state responsibility,

especially, with regard to the length that states are willing to go in order to avoid bearing the consequences of their wrongful actions.

In July 1985, a team of French agents sabotaged and sank the Rainbow Warrior,

a vessel belonging to Greenpeace International, an NGO vocal in the pursuit of

environmental objectives At the time of the sabotage, the Rainbow Warrior was

located in a New Zealand harbor As a result of the sabotage, one of the members

of the crew was killed The two agents responsible for the sabotage were arrested in New Zealand They pleaded guilty to charges of manslaughter and criminal damage and were sentenced by a New Zealand court to ten years of imprisonment France demanded the release of the agents and threatened New Zealand with trade sanctions New Zealand claimed that trade sanctions were illegitimate in this case and asked for compensation for the damage it incurred from the incident The parties agreed for the Secretary-General of the United Nations to mediate the dispute and agreed to accept the ruling of the Secretary-General independent

of whether it was favorable to their interests The Secretary-General awarded New Zealand damages and requested that France refrain from taking measures that would inhibit trade between New Zealand and the EU New Zealand, according the ruling,

181 Agreement between Australia and the Republic of Nauru for the Settlement of the Case in the tional Court of Justice Concerning Certain Phosphate Lands in Nauru, Aug 10, 1993, (1993) AustralianTreaty Series No 26

Interna-182 Michael E Pukrop, Phosphate Mining in Nauru, TED Case Studies, Case Number 412, May 1997,available online at http://www.american.edu/projects/mandala/TED/Nauru.htm

183 Rehabilitation and Development Co-operation Agreement between the Government of Australia andthe Government of the Republic of Nauru, May 5, 1994, (1994) Australian Treaty Series No 15

184 Art 2, id.

185 Art 22, id.

In December 1987, France claimed that one of the agents had to be transferred

to France because of an “urgent, health related” matter New Zealand’s request to examine the agent before the transfer was denied After receiving medical treatment

in France, medical experts from New Zealand examined the agent to conclude that, despite the health problem alleged, urgent transfer was not necessary New Zealand’s medical experts concluded that the French agent, after receiving treatment, could be transferred back to isolation in the Pacific But France refused to transfer the agent back to isolation and the agent remained in France.

The second agent was repatriated in 1988 when France notified New Zealand accordingly about the agent’s condition that made necessary repatriation and asked New Zealand’s consent for such repatriation As New Zealand’s medical team was about to arrive to the island, France – citing urgent circumstances – precipitated the agent’s evacuation The agent was repatriated and never returned to seclusion New Zealand initiated the arbitration proceedings provided for in the 1986 agree- ment.187France argued that it was not able to fulfill its obligations under the agree-

ment because of force majeure circumstances.

The arbitration tribunal cited factors of state responsibility, as formulated by the International Law Commission, which preclude wrongfulness even if an unlawful act

is committed Such factors include force majeure, necessity, and distress The tribunal noted that force majeure implies the existence of circumstances that would make

the compliance of a state with an international obligation impossible – not merely burdensome Distress involves the existence of circumstances that have to do with the serious threat to life or physical integrity of a state organ or of persons entrusted

to its care Necessity has to do with circumstances that involve the vital interests of

a state.

The tribunal concluded that force majeure was not an applicable defense for France.

This is because France’s compliance was not impossible but merely burdensome The tribunal explained that for distress to apply, three conditions had to be satisfied:

• the existence of exceptional medical or other circumstances of extreme urgency, provided that a prompt recognition of these circumstances was obtained from or demonstrated by the other party;

• the reestablishment of the original situation of compliance once the circumstances

of emergency no longer applied; and

• a good faith attempt to obtain New Zealand’s consent under the 1986 agreement The tribunal maintained that in the case of the first agent who required medical treatment, France acted in accordance with its obligations France evacuated the

186 Conciliation Proceedings (New Zealand v France): Ruling of the UN Secretary General Perez deCuellar, New York, July 5, 1986, reprinted in 26 ILM 1346 (1987)

187 New Zealand v France, April 30, 1990

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agent without the consent of New Zealand because of its urgent medical tion that required treatment not available in the military base in the Pacific The tribunal concluded, however, that France violated its obligations under the 1986 agreement when it refused to turn back the agent to isolation after the medical treat- ment was completed France was also in breach of its obligations, under the 1986 agreement, because of its repatriation of the second agent without the consent of New Zealand.

condi-Despite France’s breach of its obligations, the tribunal did not require the return of the agents to isolation At the time of the tribunal’s proceedings, France’s obligations had expired The agreement that was signed in 1986 between France and New Zealand required for the agents to remain in isolation for three years In 1989, when the tribunal rendered its rulings, that obligation had expired.

The tribunal ordered France to establish a fund to promote the close and friendly relationships between the two countries France had to make the initial contribution

to the fund in the amount of U.S.$2 million as a form of compensation owed to New Zealand.

Another state activity that provoked claims of state responsibility is nuclear testing France’s nuclear testing over the Pacific involved issues of state responsibility because

of the fallout of radioactive material on Australia’s and New Zealand’s territory Australia and New Zealand claimed that France had committed a wrongful act by conducting nuclear atmospheric tests that caused nuclear fallout More specifically, Australia claimed that the tests violated its right to be free from atmospheric weapons testing by any country Australia claimed that radioactive fallout on its territory and its dispersion in Australia’s airspace, without its consent, violated its sovereignty over its territory Australia argued that the radioactive fallout interfered with ships and aircraft in the high seas and airspace and caused pollution in the high seas.188Furthermore, Australia alleged that:

• the radioactive fallout on its territory had given rise to measurable tions of radio-nuclides in foodstuffs and in people and had resulted in additional radiation doses to the persons who lived in the hemisphere and in Australia in particular;

concentra-• any radioactive fall out was potentially dangerous to Australia and its people and any injury caused would be irreparable;

• the conduct of French nuclear tests in the atmosphere created anxiety and cerns among Australian people;

con-• the effects of nuclear tests on the environment could not be undone and would

be irremediable by any payment of damages; and

• infringement on the freedom of movement of the people of Australia in the high seas and the airspace was irremediable.189

188 Para 22, Nuclear Tests Case, (Australia v France), (Interim Measures), June 22, 1973, (1973) ICJ Reports

99 For a similar case that was brought by New Zealand against France, see Nuclear Tests Case, (NewZealand v France), (Interim Measures), June 22, 1973, (1973) ICJ Reports 135

189 Para 27, Nuclear Tests Case, (Australia v France), id For similar claims made by New Zealand, see para.

23, Nuclear Tests Case, (New Zealand v France), id.

expressed its conviction that in the absence of ascertained damage attributable to its

nuclear experiments, they did not violate any rule of international law, and that, if theinfraction of the law was alleged to consist in a violation of a legal norm concerning

the threshold of atomic pollution which should not be crossed, it was hard to see what was

the precise rule on which Australia relied [emphasis added].190With this response, France pointed out two issues that are basic for the articulation

of state responsibility in matters of transboundary pollution:

• the difficulty of proving damages, especially in incidents that involve hazardous and radioactive substances whose effect on human health and the environment

is cumulative and may not appear immediately; and

• the issue of the absence of international standards that set thresholds of pollution.

In the absence of international standards that set thresholds of pollution, it would

be hard to prove that a state that pollutes violates an international rule.

The ICJ did not get to decide on the issue of state responsibility France lenged the jurisdiction of the ICJ When the ICJ was about to decide the question

chal-of jurisdiction,191 France, in a number of public statements, declared its intention

to stop atmospheric testing “under normal conditions” and to shift its operations underground Despite objections from New Zealand and Australia that the qualifi- cation “under normal conditions”192for the cessation of atmospheric testing did not offer sufficient assurance that nuclear testing would cease, the Court concluded that:

• the unilateral declaration of France to stop nuclear testing involved an

undertak-ing of an erga omnes obligation to stop such testundertak-ing;193

• the dispute no longer existed; and194

• proceeding with the case would have no meaning.195Thus, the ICJ did not eventually decide whether nuclear atmospheric testing was consistent with the applicable rules of international law.

6 INTERNATIONAL LIABILITY

One of the first articulations of the concept of international liability for acts not prohibited by international law but that could have, nevertheless, injurious

190 Para 28, Nuclear Tests Case, (Australia v France), id.

191 Nuclear Tests Case, (New Zealand v France), ( Judgment), Dec 20, 1974, (1974) ICJ Reports 457.

See also Nuclear Tests Case, (Australia v France), ( Judgment), Dec 20, 1974, 1974 ICJ Reports 253

[hereinafter Australia case]

192 According to one of the statements made by French authorities: “Thus the atmospheric tests whichare soon to be carried out will, in the normal course of events, be the last of this type.” See para 35,

Australia case, id.

193 Para 50, id.

194 Para 55, id.

195 Para 56, id.

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consequences is encountered in the Space Liability Treaty.196 The treaty provides that a state that launches a space object

shall be absolutely liable to pay compensation for damage caused by its space object

on the surface of the earth or to aircraft flight.197Thus, although launching space objects is a legal activity, states are to bear the costs of such an activity by undertaking to pay compensation for the injurious consequences of space launching on other states Damage is defined as: loss of life, personal injury or impairment of health, loss of or damage to property of states or

of persons, or loss of or damage to property of intergovernmental organizations.198

In some cases, liability could be joint and several.199The treaty was empirically tested shortly after its adoption Canada used the treaty to file a claim against the Soviet Union for compensation for damage caused

by the intrusion into Canadian airspace of the Soviet satellite, Cosmos 954, and the

deposition on the Canadian territory of highly hazardous radioactive debris The satellite entered the Canadian airspace in the morning hours of January 24, 1978 The Soviet Union failed to notify Canada regarding the intrusion A notification would have prompted Canada to adopt appropriate measures more swiftly Canada demanded about C$6 million in compensation based on the absolute liability prin- ciple included in the Space Liability Convention Canada based its claim on article XII of the Space Liability Treaty Article XII provides:

The compensation which the launching State shall be liable to pay for damage underthis Convention shall be determined in accordance with international law and the

principles of justice and equity, in order to provide such reparation in respect of the

damage as will restore the person, natural or juridical, State or international

organiza-tion on whose behalf the claim is presented to the condiorganiza-tion which would have existed if the damage had not occurred [emphasis added].

Canada claimed, inter alia, that the Soviet Union failed to give Canada prior

notification of the imminent entry of the nuclear-powered satellite and failed to provide timely and complete answer to the Canadian questions of January 24, 1978, concerning the satellite Canada claimed that the Soviet Union failed, thus, to reduce the “deleterious results” of the intrusion of satellite into the airspace of Canada Eventually Canada and the USSR settled the claim for C$3 million.200

The notion of international liability can be traced in some of the early cases

decided by international tribunals, such as the Corfu Channel case and the Trial Smelter case In the Corfu Channel case, the ICJ stated that it is every state’s obligation

196 Convention on International Liability for Damage Caused by Space Objects, March 29, 1972, reprinted

in 961 UNTS 187 As of February 2001, eighty-one states including the United States and the RussianFederation had ratified the treaty Negotiations for the adoption of the convention lasted from 1963 to1972

197 Art II, id.

198 Art I, id.

199 Arts IV and V, id.

200 Settlement of Claim between Canada and the Union of Soviet Socialist Republic for Damage Caused

by “Cosmos 954”, Released on April 2, 1981

In the Trial Smelter case, the arbitration tribunal concluded that, under the

princi-ples of international law, no state has the right to use or permit the use of its territory

in a manner as to cause injury by fumes to the territory of another state when the polluting acts are of serious consequence and the injury is established by clear and convincing evidence.202

Thus, the Trial Smelter case, by launching a definition of state liability for

pol-lution, introduced a problematic about the circumstances in which such liability applies According to the tribunal, the polluting acts must be “of serious conse- quence” and the injury must be established with clear and convincing evidence.

An issue that a decision maker has to resolve, therefore, is the amount of pollution that is considered of serious consequence Raising the evidentiary bar so that the injury is further demonstrated clearly and convincingly is bound to be prohibitive for the articulation of many environmental claims This is because the effects of pollution on humans and nature are often inconclusive and the amount of scientific certainty surrounding the causal connection between pollution and injury is gene- rally low.

Because of the difficulties of establishing with clarity a concept of state liability, the ILC undertook the task to define the parameters of the concept The undertaking was fraught with difficulties from the beginning, especially, as the commission tried

to distinguish between the concept of state responsibility for wrongful acts mitted under international law and international liability for acts that – although not prohibited under international law – have harmful consequences on other states.

com-The concept of international liability, as initially articulated by the various porteurs of the commission, did not include only the requirement for payment of damages, because of an act’s injurious consequences, but also the primary obligation

rap-to prevent, inform, and negotiate.203Thus, international liability becomes a unique liability concept in that it includes both the primary obligation to prevent, inform, and negotiate and the obligation to make reparations By including in the concept

of international liability primary obligations, international liability was presented in

a manner foreign to a legal understanding of liability The term “liability” in legal discourse denotes the breach of an obligation.204

Other objections to the concept of international liability come from the difficulties

of translating the concept in other languages Although both the terms “liability” and “responsibility” exist in English, the same is not true for Spanish and French, in which the term “responsibility” is used to describe both liability and responsibility.

201 See Chapter 1, Section4.5

202 Id.

203 For a discussion of the concept of international liability in its initial stages, see Elli Louka, The tional Management of Hazardous and Radioactive Wastes 26–29 (and accompanying citations) (Orville

Transna-H Schell Center for International Human Rights, Yale Law School, Occasional Paper 1992)

204 See Alan E Boyle, State Responsibility and International Liability for Injurious Consequences of Actsnot Prohibited by International Law: A Necessary Distinction? 39 International & Comparative LawQuarterly 1 (1990); G ¨unther Handl, Liability as an Obligation Established by a Primary Rule of Inter-national Law, XVI Netherlands Yearbook of International Law 49 (1985)

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Because the terms “liability” and “responsibility” are used to describe two distinct legal concepts, the absence of equivalent distinctive words in other languages creates significant problems.205

Eventually, the ILC published its first draft articles on international liability in

2001, twenty-three years after the initial undertaking of the topic It is interesting

to note that the commission tried to distinguish between the primary obligation and the breach of the obligation The first set of draft articles that were adopted

in 2001 have to do with the “prevention of transboundary harm from hazardous activities.”206

The second set of articles that the commission is still working on have to do with

“international liability for injurious consequences arising out of acts not prohibited

by international law” or what also may be called – referring directly to the newly articulated set of primary rules – “international liability in case of loss from trans- boundary harm arising out of hazardous activities.”207 The notion of international liability, as elaborated now, has to do with the allocation of damages in case of a transboundary harm arising out of hazardous activities.

With regard to the first set of draft articles adopted in 2001 that deal with the primary obligation, a number of provisions are noteworthy For a state of origin to authorize a hazardous activity, it must perform a risk assessment In this risk assess- ment, it must gauge the transboundary harm caused by the contemplated activity.208

If, by performing a risk assessment, the state of origin concludes that the activity

is likely to cause “significant transboundary harm” on another state, it must vide timely notification to the affected state Such notification must contain a risk assessment of the activity and other relevant information.209 No authorization of

pro-an activity is to take place before the elapse of six months pending the receipt of a response of the state likely to be affected.210

Article 9 further provides that states shall enter into consultations, at the request

of any of them, with the goal to adopt “acceptable solutions” so that measures can

be taken to avoid significant transboundary harm or the risk of such harm.211 To avoid perceptions that consultations could become a delaying tactic, it is provided that states must agree, in the beginning of consultations, for a reasonable time frame for their conclusion.212 States are urged to seek solutions based on an “equitable balance of interests” analyzed in detail in article 10.213 If the consultation process fails to produce mutually agreed solutions, the state of origin is requested to take

205 Louka, supra note 203, at 27.

206Draft articles on Prevention of Transboundary Harm from Hazardous Activities adopted by the Interna-tional Law Commission at its Fifty-third session, Official Records of the General Assembly, Fifty-sixthsession, Supplement No 10 (A/56/10, chp V.E.1), 2001 [hereinafter Draft Articles]

207See Second Report on the Legal Regime for the Allocation of Loss in Case of Transboundary HarmArising out of Hazardous Activities by Pemmaraju Sreenivasa Rao, Special Rapporteur, InternationalLaw Commission, Fifty-sixth Session, May 3–June 4 & July 5–Aug 6, 2004, UN Doc A/CN.4/540(2004) [hereinafter Allocation Articles]

208 Art 7, Draft Articles, supra note 206.

Article 10 provides a nonexhaustive list of factors that must be taken into account

in balancing the interests of states, including:

• the degree of risk of significant transboundary harm and the availability of means

of preventing, minimizing, or repairing such harm;

• the importance of the activity to the state of origin (including social, economic, and technical advantages) in relation to the potential harm of the state affected;

• the risk of significant harm to the environment and the availability of means of preventing such harm, minimizing the risk of harm or restoring the environment;

• the degree to which the state of origin and, as appropriate, the state affected are prepared to contribute to the costs of prevention;

• the economic viability of the activity in relation to the costs of prevention, the possibility of carrying out the activity somewhere else, or replacing it with an alternative activity;

• the standard of prevention which a state likely to be affected applies to the same

or comparable activities and the standards applied in comparable regional and international practice.

This list is quite wide-ranging What is interesting, in this context, is the lack of reference to the concept of strict liability for specific hazardous activities Instead, the commission seems to have adopted a relativist view of undesirable hazardous activities affected by the interests of parties and by the economics of the specific situation Overall, the view adopted seems to point to the direction that it is not the

nature of the activity per se that would banish the activity but the interests served

and the costs and benefits associated with the pursuit of these interests.215The draft articles do not include many references to the polluter pays principle.216Actually, it is mentioned that one of the factors to be taken into account in per- forming the equitable balancing of interests is the degree to which the state of originand, as appropriate, the State likely to be affected are prepared to contribute to thecosts of prevention

The idea that a state likely to be affected by a hazardous activity would be prepared

to contribute to the costs of prevention is, in principle, antithetical to a sticto sensu

understanding of the polluter pays principle.

The prominence of a balance of interests approach in the configuration of the mary obligation of prevention of harm demonstrates an inclination of international environmental lawmaking toward a notion of common responsibility This notion

pri-of common responsibility is based on an understanding that all states engage in some kind of hazardous activity and, thus, are likely to suffer and impose on other states undesirable externalities.

214 Art 9(3), id.

215 See also Ronald H Coase, The Problem of Social Cost, 3 Journal of Law & Economics 1 (1960)

216 The ILC has expressed explicitly doubts about whether the polluter pays principle could be considered

as a widely accepted principle in international law See International Law Commission Report, ter VII, 188–194 (2004), available online at http://www.un.org/law/ilc/reports/2004

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This notion of the equitable balancing of interests is found actually in many fields

of international law, such as the law on watercourses,217 high seas fisheries,218 and maritime boundary delimitation.219 It is found also in specific treaties such as the Rhine Protocol on Chlorides220 and the Agreement on the Definitive Solution

of the Salinity of the Colorado River.221 The question is whether issues regarding transboundary harm are addressed better under an equitable balancing of inter- ests approach or under a more predictable approach (e.g., under a strict liability regime).222 At this stage, the ILC has opted for flexibility instead of predictability Maybe it has opted wisely.

The second set of rules that the commission is still debating has to do with the allocation of loss arising out of hazardous activities.223 Some states have noted correctly that the principle of allocation of loss deviates from the polluter pays principle.224Other states have noted that placing liability on states in whose territory

a hazardous activity occurs is unfair States have noted that, in most cases, hazardous activities benefit the operator and that state liability, as provided for in international conventions, is in principle supplementary.225States have claimed that even if liability were primarily channeled to them, they would have to devise ways to allocate the costs of liability internally to different domestic actors.226

The commission has examined the international private liability regimes (e.g., the oil pollution regime, the Lugano Convention, and the Basel Protocol) From the proposed allocation articles, the ILC seems to have concluded that current rules

of international liability channel liability primarily to the operator States retain the role of providing residual, supplementary compensation to victims Overall, however, the commission remains torn between establishing a primary state liability rule or proposing supplementary state liability For instance, a version of article 4 of the debated articles on state liability places responsibility directly on the state of origin for providing compensation:

The State of origin shall take necessary measures to ensure that prompt and adequatecompensation is available for persons in another State suffering transboundary dam-age caused by a hazardous activity located within its territory or in places under itsjurisdiction or control.227

The alternative version of article 4 shifts from the notion of state liability to a regime of private liability:

The operator of a hazardous activity located within the territory or in places within thejurisdiction and control of a State shall be liable for the transboundary damage caused

217 See Chapter5

218 See Chapter6

219 See Chapter 1, Section6.6

220 See Chapter 5, Section5.4.2

221 See Chapter 5, Section5.5.2

222 For a very interesting discussion on this topic, see Alan E Boyle, Codification of International mental Law and the International Law Commission, in International Law and Sustainable Development:Past Achievements and Future Challenges 61, 80, 81 (Alan Boyle & David Freestone, eds., 2001)

Environ-223 Allocation Articles, supra note 207.

The States concerned shall take the necessary measures to establish supplementaryfunding mechanisms to compensate victims of transboundary damage who are unable

to obtain prompt and adequate compensation from the operator of a [legally] establishedclaim for such damage under the present principles.229

The debates that are shaping the regime of allocation of costs in the case of boundary harm resulting from hazardous activities demonstrate the lack of willing- ness of states to subscribe to an international liability regime that would hold them primarily responsible for transboundary harm It is not surprising, therefore, that questions about state liability revert eventually to discussions about private liability For activities that states cannot effectively control, the argument goes, private liabil- ity is more sensible For activities that they are willing to tolerate, the question goes back to the balance of interests between the state that is willing to tolerate and other adversely affected states.

trans-7 CONCLUSION

Strict liability is the applicable rule in most international regimes that deal with environmental pollution Strict liability is justified in international environmental law The nature of harm that results from hazardous activities is such that it is difficult to establish, in a credible fashion, causation between the polluting incident and the harm that occurred.

Even if liability is strict, however, it is usually limited both in terms of securing defenses and in terms of caps that are placed on the amounts of compensation that can be requested When the first private liability regimes were established, the potential lack of insurance for polluting industries was of paramount concern Insurance markets are now available for some international private liability regimes, whereas others are still struggling because of feeble insurance markets.

Furthermore, none of the regimes negates the polluter pays principle but, at the same time, they propose a broader perspective on the identity of polluter Most regimes hold the operator of a hazardous activity primarily responsible but provide supplementary compensation mechanisms either in the form of industry contribu- tions or in the form of state subsidization The international liability regime, as it is progressing in the work of the ILC, is more preoccupied with the equitable allocation

of costs resulting from polluting activities rather than with assigning responsibility

to a state in which a polluting activity originates.

228 Id at 25.

229 Id at 28.

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International Treaties and Other Instruments

Additional Protocol to the Convention on the Protection of the Rhine Against Pollution by Chlorides,Sept 25, 1991, 1840 UNTS 372

Adjustments and Amendments to the 1987 Montreal Protocol (Copenhagen Adjustments and ments), Nov 25, 1992, 32 ILM 874 (1993)

Adjustments and Amendments to the 1987 Montreal Protocol (London Adjustments and ments), June 29, 1990, 30 ILM 537 (1991)

Amend-African Charter on Human and Peoples’ Rights (Banjul Charter), June 27, 1981, 21 ILM 58 (1982)African Convention on the Conservation of Nature and Natural Resources, Sept 15, 1968, 1001UNTS 3

African Convention on the Conservation of Nature and Natural Resources, July 11, 2003Agreement between Kazakhstan, Kyrgyz Republic, Tajikistan, Turkmenistan and Uzbekistan on theStatus of the International Aral Sea Fund and its Organizations, April 9, 1999

Agreement between South Africa, Swaziland and Mozambique Relative to the Establishment of aTripartite Permanent Technical Committee, Feb 17, 1983

Agreement between the Federal Republic of Nigeria and the Republic of Niger Concerning theEquitable Sharing in the Development, Conservation and Use of their Common Water Resources,July 18, 1990

Agreement between the Government of the People’s Republic of Bangladesh and the Government ofthe Republic of India on Sharing of the Ganges waters at Farakka and on Augmenting its Flows(Ganges Agreement), Nov 5, 1977, 17 ILM 103 (1978)

Agreement between the Government of the United Kingdom of Great Britain and Northern Irelandand the Government of Egypt Regarding the Construction of the Owen Falls Dam, Uganda,May 30/May 31, 1949

Agreement between the Government of the United Kingdom of Great Britain and Northern Irelandand the Government of Egypt Regarding the Construction of the Owen Falls Dam in Uganda,July 16, 1952

Agreement between the Government of the United States and the Government of Marshall Islands forthe Implementation of Section 177 of the Compact of Free Association, June 25, 1983

Agreement between the Government of United Arab Republic and the Republic of Sudan for theFull Utilization of the Nile Waters, Nov 8, 1959, 453 UNTS 51

Agreement between the Governments of the Republic of Kazakhstan, the Kyrgyz Republic and theRepublic of Uzbekistan on Cooperation in the Area of Environment and Rational Nature Use,Mar 17, 1998

Agreement between the Governments of the Republic of Kazakhstan, the Kyrgyz Republic, andthe Republic of Uzbekistan on the Use of Water and Energy Resources of the Syr Darya Basin,Mar 17, 1998

Agreement between the Republic of Kazakhstan, Kyrgyz Republic, Republic of Tajikistan, menistan and Republic of Uzbekistan on Joint Activities in Addressing the Aral Sea and the Zone

Turk-482

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around the Sea Crisis, Improving the Environment, and Ensuring the Social and Economic opment of the Aral Sea Region, Mar 26, 1993

Devel-Agreement between the Republic of Zimbabwe and the Republic of Zambia Concerning the lization of the Zambezi River, July 28, 1987

Uti-Agreement between the United States and Canada Concerning the Water Quality of the Great Lakes,April 15, 1972, 11 ILM 694 (1972)

Agreement between the United States and Canada on the Water Quality of the Great Lakes, Nov 22,

1978, 30 UST 1383Agreement Concerning the Creation of a Marine Mammal Sanctuary in the Mediterranean (France,Italy, Monaco), Nov 25, 1999

Agreement Concerning the Niger River Commission and the Navigation and Transport on the RiverNiger, Nov 25, 1964, 587 UNTS 21

Agreement Establishing the South Pacific Regional Environmental Programme, June 16, 1993Agreement for the Establishment of a General Fisheries Commission for the Mediterranean, Nov 6,1997

Agreement for the Establishment of a General Fisheries Council for the Mediterranean, Sept 24, 1949Agreement for the Establishment of the Indian Ocean Tuna Commission, Nov 25, 1993

Agreement for the Implementation of the Provisions of the United Nations Convention on the Law

of the Sea of 10 December 1982 Relating to the Conservation and Management of Straddling FishStocks and Highly Migratory Fish Stocks, Dec 4, 1995, 34 ILM 1542 (1995)

Agreement of Cooperation between the United States of America and the United Mexican StatesRegarding the Transboundary Shipments of Hazardous Wastes and Hazardous Substances, Nov 12,1986

Agreement on Co-operation for the Sustainable Development of the Mekong River Basin, April 5,

1995, 34 ILM 864 (1995)Agreement on Co-operation in the Field of Joint Management and Conservation of Interstate WaterResources (Aral Sea Region), Almaty, Feb 18, 1992

Agreement on Cooperation in Research, Conservation and Management of Marine Mammals in theNorth Atlantic, April 9, 1992

Agreement on Regional Co-operation in Combating Pollution of the South East Pacific by carbons or other Harmful Substances in Cases of Emergency (Lima Agreement), Nov 12, 1981Agreement on the Action Plan for the Environmentally Sound Management of the Common ZambeziRiver System, May 28, 1987, 27 ILM 1109 (1988)

Hydro-Agreement on the Application of Sanitary and Phytosanitary Measures, April 15, 1994, MarrakeshAgreement Establishing the World Trade Organization, Annex 1A, 1867 UNTS 493, 33 ILM 1125(1994)

Agreement on the Conservation of African Eurasian Migratory Waterbirds, June 16, 1995Agreement on the Conservation of Bats in Europe, Dec 4, 1991

Agreement on the Conservation of Cetaceans of the Mediterranean and the Black Seas, Nov 24, 1996Agreement on the Conservation of Nature and Natural Resources adopted by the Association of SouthEast Asian Nations (ASEAN Agreement), July 9, 1985

Agreement on the Conservation of Seals in the Wadden Sea, Oct 16, 1990Agreement on the Conservation of Small Cetaceans of the Baltic and North Seas, Sept 13, 1991Agreement on the International Commission for the Protection of the Rhine against Pollution, April

29, 1963Agreement on the International Dolphin Conservation Program, May 15, 1998Agreement on the Protection of Rhine against Chemical Pollution, Dec 3, 1976, 16 ILM 242 (1976)Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), April 15, 1994, Mar-rakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 UNTS 299, 33ILM 1197 (1994)

Agreement Relating to the Implementation of Part XI of the United Nations Convention on the Law

of the Sea of Dec 1982 (Sea-bed Agreement), July 28, 1994Agreement to Initiate a Program to Strengthen Regional Coordination in Management of Resources

of Lake Victoria (African Region), Aug 5, 1994

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Arrangement on the Protection, Utilization, and Recharge of the Franco-Swiss Genevese Aquifer,June 9, 1977

ASEAN Agreement on Transboundary Haze Pollution, June 10, 2002Bamako Convention on the Ban of Import into Africa and the Control of Transboundary Movementand Management of Hazardous Wastes within Africa, Jan 29, 1991, 30 ILM 775 (1991)

Bangkok Declaration on Human Rights, April 2, 1993Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Dis-posal, Mar 22, 1989, 28 ILM 649 (1989)

Berne Convention for the Protection of Literary and Artistic Works, Sept 9, 1886Brussels Convention Supplementary to the 1960 Convention on Third Party Liability in the Field ofNuclear Energy, Jan 31, 1963, 956 UNTS 264

Budapest Treaty on the International Recognition of the Deposit of Microorganisms for the Purposes

of Patent Procedure, April 28, 1977Cartagena Protocol on Biosafety to the Convention on Biological Diversity, Jan 29, 2000, 39 ILM

1027 (2000)Convention between Mexico and the United States for the Distribution of Waters of Rio Grande,May 21, 1906

Convention Concerning Indigenous and Tribal Peoples in Independent Countries, June 27, 1989, 28ILM 1382 (1989)

Convention Establishing the Eastern Pacific Tuna Organization, July 31, 1989Convention for Co-operation in the Protection and Development of the Marine Environment of theWest and Central African Region (Abidjan Convention), Mar 23, 1981, 20 ILM 746 (1981)Convention for Co-operation in the Protection and Sustainable Development of the Marine Environ-ment of the North East Pacific, Feb 18, 2002

Convention for the Conservation and Management of the Vicuna, Dec 20, 1979Convention for the Conservation of Southern Bluefin Tuna, May 10, 1993, 1819 UNTS 360Convention for the Conservation of the Red Sea and Gulf of Aden Environment ( Jeddah Convention),Feb 14,1982

Convention for the Establishment of an Inter-American Tropical Tuna Commission, May 31, 1949,

80 UNTS 3Convention for the Establishment of the European and Mediterranean Plant Protection Organization,April 18, 1957, UKTS 44

Convention for the Establishment of the Lake Victoria Fisheries Organization (African Region), June

30, 1994, 36 ILM 667 (1997)Convention for the Prohibition of Fishing with Long Driftnets in the South Pacific (WellingtonConvention), Nov 29, 1989, 29 ILM 1454 (1990)

Convention for the Protection and Development of the Marine Environment of the Wider CaribbeanRegion (1983 Cartagena Convention), Mar 24, 1983, 22 ILM 221 (1983)

Convention for the Protection, Management and Development of the Marine and Coastal Environment

of the Eastern African Region (Nairobi Convention), June 21, 1985Convention for the Protection of Natural Resources and Environment of the South Pacific Region,Nov 25, 1986

Convention for the Protection of Producers of Phonograms against Unauthorized Duplication of theirPhonograms, Oct 29, 1971

Convention for the Protection of the Marine Environment and Coastal Areas of the South East Pacific(Lima Convention), Nov 12, 1981

Convention for the Protection of the Marine Environment and the Coastal Region of the ranean (1995 Barcelona Convention), June 10, 1995, OJ L 322/34, 14.12.1999

Mediter-Convention for the Protection of the Marine Environment of the North East Atlantic (OSPAR vention), Sept 22, 1992, 32 ILM 1069 (1993)

Con-Convention for the Protection of the Mediterranean Sea against Pollution (Barcelona Con-Convention),Feb 16, 1976, 15 ILM 290 (1976)

Convention for the Protection of the Natural Resources and Environment of the South Pacific Region(Noumea Convention), Nov 25,1986, 16 ILM 38 (1987)

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Convention for the Protection of the Ozone Layer (Vienna Convention), Mar 22, 1985, 26 ILM 1529(1985)

Convention on Access to Information, Public Participation in Decision-making and Access to Justice

in Environmental Matters (Aarhus Convention), June 25, 1998, 38 ILM 517 (1999)Convention on Biological Diversity, June 5, 1982, 31 ILM 822 (1992)

Convention on Civil Liability for Damage Caused During Carriage of Dangerous Goods by Road,Rail and Inland Navigation Vessels, Oct 10, 1989

Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment,June 21, 1993, 32 ILM 480 (1993)

Convention on Civil Liability for Oil Pollution Damage, Nov 29, 1969, 973 UNTS 3, 9 ILM 45(1970)

Convention on Civil Liability for Oil Pollution Damage, Nov 27, 1992Convention on Conservation of Nature in the South Pacific (Apia Convention), June 12, 1976, (1990)Australian Treaty Series, No 41

Convention on Cooperation for the Protection and Sustainable Use of the Danube River, June 29,

1994, OJ L 342/19, 12.12.1997Convention on Early Notification of a Nuclear Accident, Sept 26, 1986, 25 ILM 1370 (1986)Convention on Environmental Impact Assessment in a Transboundary Context, Feb 25, 1991, 30 ILM

800 (1991)Convention on European Patents, Oct 5, 1973, 13 ILM 268 (1974)Convention on Future Multilateral Co-operation in North East Atlantic Fisheries, Nov 18, 1980Convention on Future Multilateral Cooperation in the Northwest Atlantic Fisheries, Oct 24,1978

Convention on International Civil Aviation, Dec 7, 1944, 15 UNTS 295Convention on International Liability for Damage Caused by Space Objects, Mar 29, 1972, 961UNTS 187

Convention on International Trade in Endangered Species of Wild Flora and Fauna, Mar 6, 1973, 12ILM 1085 (1973)

Convention on Limitation of Liability for Maritime Claims, Nov 19, 1976, 16 ILM 606 (1976)Convention on Long-range Transboundary Air Pollution (CLRTAP), Nov 13, 1979, 18 ILM 1442(1979)

Convention on Nature Protection and Wildlife Preservation in the Western Hemisphere, Oct 12,

1940, 161 UNTS 193Convention on Nuclear Safety, June 17, 1994, 33 ILM 1514 (1994)Convention on Oil Pollution Preparedness, Response and Co-operation, Nov 30, 1990, 30 ILM 735(1991)

Convention on Persistent Organic Pollutants, May 22, 2001, 40 ILM 532 (2000)Convention on Supplementary Compensation for Nuclear Damage (CSC Convention), Sept 12,

1997, 36 ILM 1473 (1997)Convention on the Conservation and Management of Fishery Resources in the South East AtlanticOcean (SEAFO), April 20, 2001

Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Westernand Central Pacific Ocean, Sept 5, 2000

Convention on the Conservation of Antarctic Marine Living Resources (CCAMLR), May 20, 1980Convention on the Conservation of European Wildlife and Natural Habitats (Bern Convention),Sept 19, 1979, European Treaty Series No 104

Convention on the Conservation of Migratory Species of Wild Animals (Bonn Convention), June 23,

1979, 19 ILM 15 (1980)Convention on the Establishment of an International Fund for Compensation for Oil Pollution Damage,Dec 18, 1971

Convention on the High Seas, April 29, 1958, 450 UNTS 82Convention on the Law of Non-Navigational Uses of International Watercourses, May 21, 1997, 36ILM 700 (1997)

Convention on the Liability of Operators of Nuclear Ships, May 25, 1962Convention on the Physical Protection of Nuclear Material, Oct 26, 1979

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Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (LondonDumping Convention), Dec 29, 1972, 1046 UNTS 120

Convention on the Prohibition of Fishing with Long Driftnets in the South Pacific, Nov 23, 1989,

29 ILM 1454 (1990)Convention on the Protection and Use of Transboundary Watercourses and International Lakes,Mar 17, 1992, 31 ILM 1312 (1992)

Convention on the Protection of the Black Sea against Pollution, April 21, 1992, 32 ILM 1101(1993)

Convention on the Protection of the Marine Environment of the Baltic Sea (1992 HELCOM vention), April 9, 1992

Con-Convention on the Protection of the Rhine, April 12, 1999, OJ L 289/31, 16.11.2000Convention on the Protection of the Rhine against Pollution by Chlorides, Dec 3, 1976, 16 ILM 265(1977)

Convention on Wetlands of International Importance (Ramsar Convention), Feb 2, 1971, 996 UNTS245

Convention Relative to the Preservation of Fauna and Flora in their Natural State (African Region),Nov 8, 1933

Convention Respecting Measures for the Preservation and Protection of the Fur Seals in the NorthPacific Ocean, July 7, 1911

Convention to Ban the Importation into the Forum Island Countries of Hazardous and RadioactiveWastes and to Control the Transboundary Movement and Management of Hazardous Wastes withinthe South Pacific Region, Sept 16, 1995

Cooperative Agreement for the Conservation of Sea Turtles of the Caribbean Coast of Costa Rica,Nicaragua and Panama, May 8, 1998

European Landscape Convention, July 19, 2000, European Treaties Series (ETS) no 176Exchange of Notes between His Majesty’s Government in the United Kingdom and the EgyptianGovernment in regard to the Use of the Waters of the River Nile for Irrigation Purposes, Note byMohamed Mahmound Pasha to Lord Lloyd, May 7, 1929

Framework for General Co-operation between the Arab Republic of Egypt and Ethiopia, July 1, 1993General Agreement on Tariffs and Trade, April 15, 1994, Marrakesh Agreement Establishing the WorldTrade Organization, Annex 1A, 1867 UNTS 187, 33 ILM 1153 (1994)

General Agreement on Trade in Services, April 15, 1994, Marrakesh Agreement Establishing the WorldTrade Organization, Annex 1B, 33 ILM 1168 (1994)

Helsinki Convention on the Protection of Marine Environment of the Baltic Sea Area, Mar 22, 1974,

13 ILM 546 (1974)Inter-American Convention for the Protection and Conservation of Sea Turtles, Dec 1, 1996Interim Convention on the Conservation of North Pacific Fur Seals, Feb 9, 1957

International Convention for the Conservation of Atlantic Tunas (ICCAT), May 14, 1966, 637 UNTS63

International Convention for the Prevention of Pollution from Ships, Nov 2, 1973, 12 ILM 1319(1973)

International Convention for the Regulation of Whaling, Dec 2, 1946, 161 UNTS 72International Convention for the Safety of Life at Sea, Nov 1, 1974, 1184 UNTS 3International Convention for the Unification of Certain Rules Relating to the Limitation of Liability

of Owners of Sea-going Vessels, Aug 25, 1924International Convention on Civil Liability for Bunker Oil Pollution Damage, Mar 23, 2001International Convention on Liability and Compensation for Damage in Connection with the Carriage

of Hazardous and Noxious Substances by Sea, May 3, 1996, 35 ILM 1406 (1996)International Convention on Oil Pollution Preparedness, Response and Co-operation, Nov 30, 1990,

30 ILM 735 (1991)International Convention Relating to Intervention on the High Seas in Cases of Oil Pollution Casu-alties, Nov 29, 1969, 9 ILM 25 (1970)

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International Convention Relating to the Limitation of Liability of Owners of Sea-going Ships, Oct

10, 1957International Covenant on Civil and Political Rights, Dec 16, 1966, 999 UNTS 171International Covenant on Economic, Social and Cultural Rights, Dec 16, 1966, 993 UNTS 3International Treaty on Plant Genetic Resources for Food and Agriculture, Nov 3, 2001International Tropical Timber Agreement (ITTA), Jan 26, 1994, 33 ILM 1014 (1994)Israeli-Palestinian Interim Agreement on the West Bank and the Gaza Strip, Sept 28, 1995, 36 ILM

551 (1997)Joint Convention on the Safety of Spent Fuel Management and on the Safety of Radioactive WasteManagement, Sept 5, 1997

Locarno Agreement Establishing an International Classification for Industrial Designs, Oct 8, 1968Lusaka Agreement on Co-operative Enforcement Operations Directed at Illegal Trade in Wild Faunaand Flora, Sept 9, 1994

Madrid Agreement Concerning the International Registration of Marks, April 14,1891Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement), April 15, 1994,

1867 UNTS 154, 33 ILM 1144 (1994)Nairobi Convention for the Protection, Management and Development of the Marine and CoastalEnvironment of the Eastern African Region, June 21, 1985

Nauru Agreement Concerning Cooperation in the Management of Fisheries Resources of CommonInterest (Western and Central Pacific Ocean Region), Feb 11, 1982

Nice Agreement Concerning the International Classification of Goods and Services for the Purposes

of the Registration of Marks, June 15, 1957North American Free Trade Agreement, Dec 17, 1992Oslo Convention for the Prevention of Marine Pollution by Dumping from Ships and Aircraft,Feb 15, 1972, 932 UNTS 3

Paris Convention for the Prevention of Marine Pollution from Land-Based Sources, June 4, 1974, 13ILM 352 (1974)

Paris Convention for the Protection of Industrial Property, Mar 20, 1883Paris Convention on Third Party Liability in the Field of Nuclear Energy, July 29, 1960,1041 UNTS358

Patent Cooperation Treaty, June 19, 1970Patent Law Treaty, June 1, 2000

Polar Bear Agreement, Nov 15, 1973, 13 ILM 13 (1973)Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals, Oct 12,1984

Protocol Amending the Interim Convention on Conservation of North Pacific Fur Seals, Oct 14,1980

Protocol Concerning Co-operation in Combating Oil Spills (Cartagena Oil Spills Protocol), Mar 24,

1983, 22 ILM 240 (1983)Protocol Concerning Co-operation in Combating Pollution Emergencies (South Pacific Region),Nov 25, 1986

Protocol Concerning Co-operation in Combating Pollution in Cases of Emergency (Western andCentral African Region), Mar 23, 1981, 20 ILM 756 (1981)

Protocol Concerning Co-operation in Preventing Pollution from Ships and, in cases of Emergency,Combating Pollution of the Mediterranean Sea, Jan 25, 2002

Protocol Concerning Cooperation in Combating Marine Pollution in Cases of Emergency (EasternAfrican Region), June 21, 1985

Protocol Concerning Cooperation in Combating Pollution by Oil and other Harmful Substances inCases of Emergency, (Arabian Gulf Region), July 1, 1979,17 ILM 526 (1978)

Protocol Concerning Marine Pollution Resulting from the Exploration and Exploitation of the tinental Shelf (Arabian Gulf Region), Mar 29, 1989

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Protocol Concerning Pollution from Land-based Sources (Arabian Gulf Region) Feb 21, 1990Protocol Concerning Protected Areas of Wild Fauna and Flora in the Eastern African Region, June

21, 1995Protocol Concerning Regional Cooperation in Combating Pollution by Oil and other Harmful Sub-stances in Cases of Emergency (Red Sea and Gulf of Aden Region), Feb 14, 1982

Protocol Concerning Specially Protected Areas and Wildlife to the Convention for the Protection andDevelopment of the Marine Environment of the Wider Caribbean Region (Kingston Protocol),Jan 18, 1990

Protocol Concerning the Control of Emissions of Nitrogen Oxides or their Transboundary Fluxes(Protocol to the CLRTAP), Oct 31, 1988, 28 ILM 212 (1989)

Protocol Concerning the Control of Emissions of Volatile Organic Compounds or their TransboundaryFluxes (Protocol to the CLRTAP), Nov 8, 1991, 31 ILM 573 (1992)

Protocol Concerning the Protection of the Mediterranean Sea Against Pollution Resulting from ration and Exploitation of the Continental Shelf and the Seabed and its Subsoil (1994 MadridOffshore Protocol), Oct 14, 1994

Explo-Protocol for the Conservation and Management of Protected Marine and Coastal Areas of the SouthEast Pacific, Sept 21, 1989

Protocol for the Prevention of Pollution of the Mediterranean Sea by Dumping from Ships and Aircraft

or Incineration at Sea, June 10, 1995Protocol for the Prevention of Pollution of the South Pacific Region by Dumping, Nov 25, 1986Protocol for the Protection of the Mediterranean Sea against Pollution from Land-based Sources andActivities, Mar 7, 1996

Protocol for the Protection of the South East Pacific against Pollution from Land-based Sources (QuitoProtocol to the Lima Convention), July 22, 1983

Protocol of 1992 to Amend the International Convention on Civil Liability for Oil Pollution Damage,Nov 27, 1992

Protocol of 1992 to Amend the International Convention on the Establishment of an InternationalFund for Compensation for Oil Pollution Damage, Nov 27, 1992

Protocol of 1996 to Amend the Convention on Limitation of Liability for Maritime Claims, May 9,

1996, 35 ILM 1433 (1996)Protocol on Environmental Protection to the Antarctic Treaty, Oct 4, 1991, 30 ILM 1461 (1991)Protocol on Further Reduction of Sulphur Emissions (Protocol to the CLRTAP), June 14, 1994, 33ILM 1540 (1994)

Protocol on Heavy Metals (Protocol to the CLRTAP), June 24, 1998Protocol on Inserting Amendments and Addenda in the Agreement between the Governments of theRepublic of Kazakhstan, the Kyrgyz Republic, and the Republic of Uzbekistan on the Use of Waterand Energy Resources of the Syr Darya Basin, May 7, 1999

Protocol on Intervention on the High Seas in Cases of Marine Pollution by Substances other than Oil,Nov 2, 1973, 1313 UNTS 3 (1983)

Protocol on Liability and Compensation for Damage Resulting from Transboundary Movements ofHazardous Wastes and their Disposal, Dec 10, 1999

Protocol on Long-Term Financing of the Cooperative Programme for Monitoring and Evaluation

of the Long-range Transmission of Air Pollutants in Europe (Protocol to the CLRTAP), Sept 28,

1984, 24 ILM 484 (1985)Protocol on Persistent Organic Pollutants (Protocol to the CLRTAP), June 24, 1998, 37 ILM 513(1998)

Protocol on Pollutant Release and Transfer Registers (Kiev Protocol to the Aarhus Convention), May

21, 2003Protocol on Preparedness, Response and Co-operation to Pollution Incidents by Hazardous andNoxious Substances, Mar 14, 2000

Protocol on Shared Watercourse Systems in the Southern African Development Community (SADC)(1995 SADC Protocol), Aug 28, 1995, 34 ILM 854 (1995)

Protocol on Shared Watercourses in the Southern African Development Community, Aug 7, 2000Protocol on Strategic Environmental Assessment to the UN/ECE Convention on EnvironmentalImpact Assessment in a Transboundary Context (SEA Convention), May 21, 2003

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Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), Sept 16, 1987, 26 ILM

154 (1987)Protocol on the Control of Marine Transboundary Movements and Disposal of Hazardous Wastes(Arabian Gulf Region), Mar 17, 1998

Protocol on the Prevention of Pollution of the Mediterranean Sea by Transboundary Movements ofHazardous Wastes and their Disposal, Oct 1, 1996

Protocol on the Prevention, Reduction and Control of Land-Based Sources and Activities to the vention for the Protection and Development of the Marine Environment of the Wider CaribbeanRegion, Oct 6, 1999

Con-Protocol on the Reduction of Sulphur Emissions or their Transboundary Fluxes by at Least 30 Percent(Protocol to the CLRTAP), July 8, 1985, 27 ILM 707 (1988)

Protocol on Water and Health to the 1992 Convention on the Protection and Use of TransboundaryWatercourses and International Lakes, June 17, 1999, 38 ILM 1708 (1999)

Protocol Relating to the 1973 International Convention for the Prevention of Pollution from Ships,Feb 17, 1978, 17 ILM 546 (1978)

Protocol to Abate Acidification, Eutrophication and Ground-level Ozone (Protocol to the CLRTAP),Nov 30, 1999

Protocol to Amend the Brussels Supplementary Convention to the Paris Convention, Feb 12, 2004Protocol to Amend the 1971 International Convention of the Establishment of an International Fundfor Compensation for Oil Pollution Damage, Nov 19, 1976, 16 ILM 621 (1977)

Protocol to Amend the Paris Convention on Third Party Liabililty in the Field of Nuclear Energy,Feb 12, 2004

Protocol to Amend the Vienna Convention on Civil Liability for Nuclear Damage, Sept 12, 1997, 36ILM 1454 (1997)

Protocol to the 1969 International Convention on Civil Liability for Oil Pollution Damage, Nov 19,

1976, 16 ILM 617 (1977)Protocol to the 1981 Convention for the Protection of the Marine Environment and Coastal Areas ofthe South East Pacific against Radioactive Pollution, Sept 21, 1989

Protocol to the Convention on the Prevention of Marine Pollution by Dumping of Wastes and OtherMatter (London Convention), Nov 7, 1996, 36 ILM 1 (1997)

Protocol to the United Nations Framework Convention on Climate Change (Kyoto Protocol), Dec

11, 1997, 37 ILM 22 (1998)Regional Convention for Co-operation on Protection of the Marine Environment from Pollution(1978 Kuwait Convention), April 24, 1978, 1140 UNTS 133

Rehabilitation and Development Co-operation Agreement between the Government of Australia andthe Government of the Republic of Nauru, May 5, 1994

Revised Protocol on Shared Watercourses in the Southern African Development Community (SADC),Aug 7, 2000, 40 ILM 321 (2001)

Rotterdam Convention on the Prior Informed Consent (PIC) Procedure for Certain Hazardous icals and Pesticides in International Trade, Sept 10, 1998, 38 ILM 1 (1999)

Chem-Trademark Law Treaty, Oct 27, 1994Treaties between Great Britain and Ethiopia, relative to the frontiers between Anglo-Egyptian Soudan,Ethiopia, and Erythroea, May, 15, 1902

Treaty between Egypt and Sudan for the Full Utilization of the Nile Waters, Nov 8, 1959, 453 UNTS

51 (1959)Treaty between his Majesty’s Government of Nepal and the Government of India Concerning theIntegrated Development of the Mahakali River including Sarada Barrage, Tanakpur Barrage andPancheshwar Project (Mahakali Treaty), Feb 12, 1996, 36 ILM 531 (1997)

Treaty between the Government of the Republic of India and the Government of the People’s Republic

of Bangladesh on Sharing of the Ganga/Ganges Waters at Farakka, Dec 12, 1996, 36 ILM 519(1997)

Treaty between the United States and Mexico Relating to the Waters of the Colorado and TijuanaRivers and of the Rio Grande (Rio Bravo) from Fort Quitman, Texas to the Gulf of Mexico, Feb

3, 1944, 3 UNTS 314